Madras High Court
Sister Mary Isabella Sam vs C.Vijayakumar @ Sekar on 22 July, 2022
Author: T.V.Thamilselvi
Bench: T.V.Thamilselvi
S.A.No.346 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 22 .07.2022
CORAM
THE HONOURABLE Mrs.JUSTICE T.V.THAMILSELVI
S.A.No.346 of 2013
Sister Mary Isabella Sam
Rep. by her Power of Attorney ...
Mr.Augustine Sam, aged about 65 years,
No.10, Ranganathapuram Street,
Chetpet, Chennai – 600 031. ....Appellant
Vs.
C.Vijayakumar @ Sekar
Son of Chidambaram,
aged about 53 years,
No.27/24, Brindavab III Street,
Chetpet, Chennai – 600031. ... Respondent
PRAYER: Second Appeal filed under Section 100 of C.P.C., against the
Judgment and Decree passed by the Hon'ble V Additional City Civil Judge,
Chenna in A.S.No,513 of 2009 dated 02.07.2010, confirming the Judgment
and Decree passed by the Hon'ble VI Assistant City Civil Judge, Chennai in
O.S.No.4381 of 2007 dated 11.06.2009..
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For Appellant : Mr.L.Rajasekar
For Respondents : No appearance
JUDGMENT
This Second Appeal has been filed by the plaintiff against the Judgment and Decree passed by the Hon'ble V Additional City Civil Judge, Chennai in A.S.No,513 of 2009 dated 02.07.2010, confirming the Judgment and Decree passed by the Hon'ble VI Assistant City Civil Judge, Chennai in O.S.No.4381 of 2007 dated 11.06.2009.
2. The appellant/plaintiff herein had filed a suit in O.S.No.4381 of 2007, on the file of the learned Vl Assistant City Civil Judge, Chennai against the respondent/defendant herein for the relief of permanent injunction and other consequential relief with regard to putting up construction on the southern side of the suit property preventing the natural air, light and ventilation which makes the suit property inhabitable. The learned VI Assistant City Civil Judge, Chennai by the Judgment dated 11.06.2009 had dismissed the suit for the reason that the appellant/plaintiff 2/15 https://www.mhc.tn.gov.in/judis S.A.No.346 of 2013 failed to prove that the respondent/defendant had attempted to put up construction on the northern side of his property without leaving the Kuraivari which is supposed to be 1 ½ feet for the easement purpose.
3. Aggrieved by the same, the plaintiffs had filed an appeal in A.S.No,513 of 2009 on the file of the V Additional City Civil Court, Chennai, by the Judgment dated 02.07.2010, had dismissed the said appeal, confirming the Judgement and decree passed by the trial Court. Feeling aggrieved, the appellant/plaintiff has filed the present Second Appeal.
4. For the sake of convenience, the parties are referred to as described before the trial Court.
5. The averments made in the plaint are, in brief, as follows:-
The plaintiff is the absolute owner in respect of suit property, as per the decree dated 24.12.1968 made in O.S.No.3117 of 1966 on the file of V Asst. City Civil Court, Madras, Ever since , she is in possession and enjoyment of the same. The defendant is a neighbour on the southern side of 3/15 https://www.mhc.tn.gov.in/judis S.A.No.346 of 2013 the suit property. The plaintiff has already put up construction and enjoying the suit property for more than 40 years. While so, the defendant is under the process of putting up construction in his property which falls on the northern boundary of the suit property. The defendant has attempted to put up construction on the northern side of his property without leaving the Kuraivari which is supposed to be 1 ½ feet for the easement purpose. Apart from that, the defendant is also attempting to keep the window opening thus blocking the entire natural light and ventilation to the suit property. It is also pertinent to mention here that on the southern side of the suit property and on the northern side of the defendant's property, the plaintiff has two windows, Blocking these two windows, the defendant is attempting to put up construction. If the construction is allowed and completed, the suit property will become inhabitable since the window will be totally closed. The plaintiff has requested the defendant to keep free 1 ½ feet on the southern side of his property and also not to make any window opening, but of no avail, the defendant is adamant and disagreeable for any amicable solution, On the other hand, he threatened the plaintiff with dire consequences, which is forbidden in law. The plaintiff sent legal notice on 22.06.2007, but there was no reply from the defendant. The plaintiff had 4/15 https://www.mhc.tn.gov.in/judis S.A.No.346 of 2013 made a complaint to G7 Chetpet Police Station. The Police enquired and advised to seek remedy before the Civil Court. Hence, this suit.
6. The averments made in the written statement filed by the defendant are, in brief as follows The defendant stated that the power agent of the principal/plaintiff cannot act as an agent of the plaintiff since the deed of power of attorney was not registered . Hence, the suit has to be dismissed. Moreover the agent did not disclose anything about the existing of power as it has been executed in the year 1978. The defendant has purchased the suit property on 27.07.2006 and ever since the date of purchase, the defendant is in absolute possession and enjoyment of the property. On the date of sale itself i.e., 27.07.2006 the building was constructed with 780 sq.ft i.e., full extent of the property which this defendant has purchased. This defendant's predecessor has constructed the building in the property purchased by the defendant by obtaining sanctioned plan under No.225/86 dated 10.08.86 itself. The plaintiff who has not objected anything before the defendant's purchase now only filed the vexatious suit to harass and to grab money illegally. Hence, the suit is liable to be dismissed. After the purchase the 5/15 https://www.mhc.tn.gov.in/judis S.A.No.346 of 2013 defendant made some alteration life plastering and pasting in the suit property and at no point of time this defendant made any structural alterations. After purchase the plaintiff only renovated the building and done some poojas. It is true that the plaintiff had issued notice to the defendant and for which this defendant had suitably answered and replied. But the plaintiff had falsely made a complaint to G7 Chetpet Police Station. The police enquired and advised to seek remedy before the Civil Court. The defendant stated that in between the plaintiff and defendant's property there is a clear 3 feet passage is there. The plaintiff can very easily get air and light through that 3 feet passage. The defendant never blocks the same. The Commissioner's report give explanation for the same. There is no cause of action arose for the suit. Therefore, the suit is liable to be dismissed.
7. Based on the aforesaid pleadings, the learned VI Assistant City Civil Judge Chennai, had framed necessary issues and tried the suit. During the trial, on the side of the plaintiff PW1 and PW2 were examined and Exs.A1 to A14 were marked. On the side of the defendant. DW1 was examined and Exs.B1 to B8 were marked and Commissioner's report and sketch were marked as Exs.C1 and C2.
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8. On hearing both sides, the learned VI Assistant City Civil Judge, Chennai, after considering the materials placed before him, found that the alleged construction fully covered on the northern side without leaving set back space has not been constructed recently, it has been constructed long back by the vendors of the respondent/defendant. The appellant/plaintiff did not raise any objection to the said construction. Therefore, the relief sought for is not maintainable and not acceptable one and accordingly, he dismissed the suit. Feeling aggrieved, the plaintiff/appellant had filed an appeal in A.S.No.513 of 2009, on the file of the learned V Additional City Civil Judge, Chennai. The learned V Additional City Civil Judge, had dismissed the said appeal and thereby confirmed the Judgment and decree passed by the trial Court. However, he directed the parties to bear their respective costs. Feeling aggrieved, the appellant/plaintiff has filed the present Second Appeal.
9. The learned counsel for the appellant has submitted that the appellant/plaintiff is the absolute owner of the property bearing door No. Old No.7G, New No.61, Rajammbal Street, Chetput, Chennai 31 and the defendant has attempted to put up construction on his northern side of the property without leaving the Kooraivari which is supposed to be 1 ½ feet for 7/15 https://www.mhc.tn.gov.in/judis S.A.No.346 of 2013 the easement purpose. Apart from that the respondent/defendant also attempted to keep the window opening thus blocking the natural air and ventilation to the property. Hence, she lodged a complaint before the Inspector of Police, Chetpet Police Station, Chennai and the police advised her to move with the Civil Court to redress the grievance.
10. The suit was resisted by the respondent/defendant, with a specific case that he purchased the property as per Ex.B1 sale deed dated 27.07.2006 which consisting of house and ground bearing door No.62/2, old door No.7 Rajammal Street, Chetpet, Chennai 31 of an extent of 780 sq.ft.. The constructed portion covered under Ex.B1 sale deed is 780 sq.ft and the age of the building is 25 years. He also contended that he purchased the property which was constructed by Predecessor in title more than 25 years ago, after purchase he has done only some plastering work and he never reconstructed in the property. Hence, the question of leaving any space on the northern boundary of the defendant does not arise and he has not prevented the air, light and ventilation, In fact there is a clear 3 feet of passage available in between both the property through which the plaintiff can get air, light and ventilation. Thereby, he totally denied the plaint that he 8/15 https://www.mhc.tn.gov.in/judis S.A.No.346 of 2013 has not put up any construction in the suit property.
11. The learned counsel for the appellant further submitted that the Appellate Court as well as the trial Court failed to appreciate the document adduced on the side of the plaintiff with regard to attempt made by the defendant to put up construction and also erroneously concluded that the building was already constructed also existing by ignoring the commissioner's report Ex.C1.
12. Even though notice has been sent to the respondent and his name has been printed in the cause list, he did not appear either in person or through his counsel. Hence, the respondent is called absent and set ex-parte.
13. In order to prove her claim, the plaintiff's brother, who was given Power of Attorney was examined as PW1 and the commissioner report was on the side of the defendant. On considering both oral and documentary evidence, the trial Court concluded that the constructed building was old one and the defendant has not put up any construction and all the three windows of the defendant's property which is only on the on the northern side and 9/15 https://www.mhc.tn.gov.in/judis S.A.No.346 of 2013 only grills have been installed.
14. Aggrieved the same, the plaintiff/appellant has preferred the appeal before the first appellate Court, on considering the submission on either side, the appellate Court had concluded that the defendant had not put up any construction and the plaintiff had not raised any objection and that the construction was put up by the vendors of the defendant and also observed that the plaintiff is not entered into to the witness box and evidence of her power of attorney is not admissible for the reason that the power holder has no right over the entire property and also observed that the power of attorney holder of the party can appear only as a witness in the personal capacity and whatever he has knowledge about the case and he can state on oath, but he cannot appear as a witness on behalf of the party in the capacity of that party. In the instant case, the plaintiff did not examined herself and failed to prove that the defendant had attempted to construct the building and accordingly, the first appeal was dismissed and the finding of the trial court was confirmed.
15. Aggrieved over the same, the appellant/plaintiff has preferred this 10/15 https://www.mhc.tn.gov.in/judis S.A.No.346 of 2013 second appeal.
16. The learned counsel appearing for the appellant submitted that both the lower appellate Court as well as the trial Court erroneously concluded that the defendant had not put up any new construction, without properly appreciating the commissioner's report. But, on perusal of the commissioner's report (Ex.C1), stated that the defendant has put up construction and he fully constructed without leaving any set back space.
17. But the defendant claims that he purchased the property along with construction and the same was constructed more than 25 years back. But, as per the title deed (Ex.A1), the plaintiff is said to have purchased the property in the year 1968, before his purchase, the defendant purchased the property with construction of full extent and the vendor of the defendant put up construction in the year 1976 itself. But the plaintiff has not raised any objection. There is space of 3 ½ feet on the southern side of the property. The entire property belongs to the plaintiff and this fact admitted by the defendant during the trial and the window fixed in the defendant property is covered with grill and not causing any disturbance to the plaintiff air and 11/15 https://www.mhc.tn.gov.in/judis S.A.No.346 of 2013 light and the same could be inferred from the commissioner's report.
18. Even during the trial, the defendant submits that he only deposed that he attempted to do only the plastering work and the repair work at the window and not put up any new construction. Therefore, the appellate Court as well as the trial Court rightly appreciate the commissioner's report as well as the available materials and documents.
19. The Trial Court as well as the appellate court rightly concluded that the defendant has not put up any new construction and the alleged construction was put up by the vendors of the defendant long back and the space of 3 feet left out on the plaintiff's property. Therefore, the submission on the side of the appellant that the commissioner's report was not properly appreciated by the Courts below is unsustainable one.
20. With regard to evidence adduced on the side of the appellant submits that the Court below not accepted the evidence and erroneously concluded that he only appeared as witness and not as plaintiff before the Court for the reason that he has no personal knowledge about the facts 12/15 https://www.mhc.tn.gov.in/judis S.A.No.346 of 2013 which were known to the plaintiff and the trial court as well as the appellate court rightly appreciated the legal aspect by relying upon the judgement in Shambhu Dutt Sastry vs State of Rajasthan 1986(2) Law weekly 713.
21. The learned trial court judge taking into consideration of the aforesaid facts, had rightly dismissed the plaintiff's claim and the same has been rightly confirmed by the first appellate court. In the said factual concurrent findings, this Court cannot interfere.
22. In the result, the second appeal is dismissed and confirming the judgment and decree of the courts below. Considering the facts and circumstances of the case, the parties are directed to bear their respective costs.
22.07.2022
Index :Yes/No
msrm
To
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S.A.No.346 of 2013
1. The learned V Additional City Civil Court,
Chennai.
2. The learned VI Assistant City Civil Court,
Chennai/
3. The Section Officer,
VR Section.
T.V.THAMILSELVI, J.
msrm
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